Disputes Continue over Who Works During a Shutdown

Lawsuit arguing that compelling anyone to work without pay is unconstitutional remains pending

Disputes are continuing over decisions on which employees in affected agencies were kept on the job during the partial shutdown, with implications for potential future shutdown, including a potential one starting February 16 when the stopgap law that restored funding will expire.

Agencies designate which employees are furloughed and which are “excepted” from furlough in their written contingency plans, based on decades-old Justice Department and OMB interpretations that even in a funding lapse, employees involved with safety and security matters can be required to continue working unpaid while others are furloughed without pay. During the recently concluded shutdown, agencies at first followed those plans but over time they began calling back to work more and more employees for tasks such as providing information needed by mortgage applicants, processing tax returns and refunds, and cleaning up and repairing damage done to national parks that remained open but with only a skeleton staff.

A lawsuit that remains pending challenged those actions, arguing that compelling anyone to work without pay is unconstitutional and that even if not, agencies went beyond any maneuvering room the law allows. While the judge refused to issue an emergency order that would have required agencies to send employees home, another court date on a new motion is coming up.

Meanwhile, the new Democratic leadership of the House appropriations committee has asked the GAO to decide which work can continue during a funding gap in light of the Antideficiency Act, which prevents agencies from spending for a purpose if money hasn’t been appropriated for that purpose. The initial focus has been on the parks employees–who were brought back in paid status by tapping into a fees account–but the policy implications would apply as well in other agencies that used similar financial maneuvers involving trust funds and other special accounts. Such accounts “are not to be used as a slush fund for the administration to use to circumvent Congress’ power of the purse,” a committee statement said.

Limiting the number of employees who remain on the job would add pressure to prevent future shutdowns or to more quickly those that do occur. The most recent one ended, for example, shortly after when growing numbers of air traffic controllers and TSA screeners–kept on the job unpaid for more than a month–started missing work because they could not afford the cost of commuting, disrupting air travel and thus the economy.